M/s. Lakhani Foot Care Ltd., Indore V. The DCIT 5(1), Indore

CO 2/IND/2014

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 0548 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 07-05-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 22-01-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: R A VERMA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NO. 386, 387, 388/IND/2012 & 409/IND/2013 A.Y. : 2003-04, 2004-05, 2005-06 & 2009-10 ACIT/DY.CIT, M/S.LAKHANI FOOT CARE LIMITED, 5(1), INDORE VS DEVGURADIA, INDORE. APPELLANT RESPONDENT PAN NO. : AABCM8126D C.O.NOS.01,02,03/IND/2013 AND 02/IND/2014 (ARISING OUT OF I.T.A.NOS. 386, 387, 388/IND/2012 & 409/IND/2013) A.Y. : 2003-04, 2004-05, 2005-06 & 2009-10 M/S.LAKHANI FOOT CARE LIMITED, ACIT/DY.CIT, DEVGURADIA, INDORE. 5(1), INDORE CROSS OBJECTOR RESPONDENT -: 2: - 2 DEPARTMENT BY : SHRI R.A.VERMA, SR. DR RESPONDENT BY : NONE. DATE OF HEARING : 06 . 0 5 .201 5 DATE OF PRONOUNCEMENT : 07 . 0 5 .201 5 O R D E R PER GARASIA, J.M. ALL THESE FOUR APPEALS BY THE DEPARTMENT AND CROSS OBJECTIONS FILED BY THE ASSESSEE ARE FILED AGAINST THE DIFFERENT ORDERS OF CIT(A)-II, INDORE. 2. THE CASE WAS FIXED FOR HEARING ON 29.10.2012. NOBOD Y APPEARED ON BEHALF OF THE ASSESSEE AND THE SUMMONS WAS SERVED THROUGH REVENUE. THE MATTER WAS THEREAFTER P OSTED ON 22.11.2012. AS SUCH, ASSESSEE MOVED AN APPLICATION FOR ADJOURNMENT. THEREAFTER, THE MATTER WAS ADJOURNED T O 28.01.2013 AND THE LD. COUNSEL FOR THE ASSESSEE WAS PRESENT ON THAT DAY. HOWEVER, MATTER WAS ADJOURNED TO 25.3. 2013 ON -: 3: - 3 THE APPLICATION OF THE REVENUE. ON 19.6.2013, THE M ATTER WAS ADJOURNED TO 17.7.2013, ON THE APPLICATION OF ASSES SEE. BOTH THE PARTIES WERE REMAINED PRESENT. THEREAFTER, THE MATTER WAS ADJOURNED TO 7.8.2013, 19.9.2013, 9.10.2013, 27.11. 2013, 21.1.2014, 23.4.2014, SINE DIE AND ON 25.3.2015, TH E CASE WAS POSTPONED FOR HEARING ON 7.4.2005. NOBODY REMAI NED PRESENT. THE SUMMONS WAS ISSUED THROUGH THE DEPOT A ND INSPECTOR HAS REPORTED AS UNDER :- AS DIRECTED BY YOU, I HAVE BEEN TO THE REGISTERED OFFICE OF THE COMPANY TO SERVE THE NOTICE GIVEN BY THE HON'BLE I.T.A.T. ON THE SAID PREMISE OF THE ASSESSEE COMPANY, I DID NOT FIND ANY PERSON RELATED TO THIS COMPANY AND MOREOVER, THE COMPANY IS SHUT DOWN AND A LOCK IS HANGING AROUND THERE. AS SUCH, THE GIVEN NOTICE COULD NOT BE SERVED BECAUSE OF UNAVAILABILITY OF ANY RESPONSIBLE PERSON OF THE SAID COMPANY. THIS IS FOR YOUR KINDLY INFORMATION AND NECESSARY DIRECTION IN THIS REGARD. -: 4: - 4 3. THE INSPECTOR REPORTED THAT THE ASSESSEE COMPANY HA S SHUT DOWN AND LOCK IS THERE. THEREFORE, THE ASSESSE E COULD NOT BE SERVED WITH THE NOTICE. 4. AS PER ORDER 11, RULE 5 OF C.P.C., IF WHEREAS THE SUMMONS HAS BEEN ISSUED TO THE OPPONENT AND IF IT I S RETURNED UNSERVED AND IF THE APPELLANT FAILS TO EXP LAIN THE REASON FOR SUMMONS RETURNED UNSERVED OR IF THE ASSE SSEE FAILED TO DISCOVER THE RESIDENCE OF THE OPPONENT, T HEN THE APPEAL HAS TO BE DISMISSED. THEREFORE, WE DISMISS T HESE APPEALS OF THE DEPARTMENT. THE DEPARTMENT IS AT LIB ERTY TO ISSUE FRESH SUMMONS AS PER ORDER 9 RULE 4 OF THE C. P.C. AND HE CAN ASK FOR RESTORATION OF THESE APPEALS BY WAY OF FILING THE MISC. APPLICATIONS. 5. THE ASSESSEE HAS ALSO FILED CROSS OBJECTIONS AGAINS T THE ABOVE APPEALS OF THE REVENUE AND THE ASSESSEE REMAI NED ABSENT. SUMMONS WAS ISSUED, BUT IN ABSENCE OF THE ADDRESS, THE SUMMONS COULD NOT BE SERVED. OUR VIEW IS SUPPOR TED BY THE FOLLOWING JUDICIAL PRONOUNCEMENTS: I) IN THE CASE OF CIT V. B.N. BHATTACHARGEE AND ANOTHER, REPORTED IN 118 ITR 461 -: 5: - 5 (RELEVANT PAGES 477 AND 478) WHEREIN THEIR LORDSHIPS HAVE HELD THAT: THE APPEAL DOES NOT MEAN MERELY FILING OF THE APPEAL BUT EFFECTIVELY PURSUING IT. II) IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR V. CWT, 223 ITR 480 (M.P.) WHILE DISMISSING THE REFERENCE MADE AT THE INSTANCE OF THE ASSESSEE IN DEFAULT MADE FOLLOWING OBSERVATION IN THEIR ORDER: IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS MADE, FAILS TO APPEAR AT THE HEARING, OR FAILS IN T AKING STEPS FOR PREPARATION OF THE PAPER BOOKS SO AS TO ENABLE HEARING OF THE REFERENCE, THE COURT IS NOT BOUND TO ANSWER THE REFERENCE. III) IN THE CASE OF CIT V. MULTIPLAN INDIA LTD., 38 ITD 320 (DEL), THE APPEAL FILED BY THE REVENUE BEFORE T HE TRIBUNAL, WHICH WAS FIXED FOR HEARING. BUT ON THE DATE OF HEARING, NOBODY REPRESENTED THE REVENUE/APPELLANT NOR ANY COMMUNICATION FOR ADJOURNMENT WAS RECEIVED. THERE WAS NO COMMUNICATION OR INFORMATION AS TO WHY THE REVENUE CHOSE TO REMAIN ABSENT ON DATE. THE TRIBUNAL ON THE BASIS OF INHERENT POWERS, TREATED THE APPEAL FILED BY THE REVENUE AS UNADMITTED IN VIEW OF THE PROVISIONS OF RULE 19 OF THE APPELLATE TRIBUNAL RULES, 1963. 3. THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED FOR NON-PROSECUTION. -: 6: - 6 4. IN THE RESULT, THE APPEALS FILED BY THE REVENUE AS WELL AS CROSS OBJECTIONS ARE DISMISSED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 7 TH MAY, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED :7 TH MAY , 2015. CPU* 675